Changing EHR Vendors Can Present Major Problems
Law Feature — April 2017
Tex Med. 2017;113(4):37-43.
By Joey Berlin
Fredericksburg family physician Jason Peet, MD, says he felt frustrated and deceived, and now he's trying to pick up the pieces.
Last summer, Dr. Peet decided to switch electronic health record (EHR) vendors. Doing so would require "deconversion," a process that allows one EHR system to read data previously entered into a separate system. Dr. Peet says the broad language in his contract with his existing vendor led him to believe the process would allow for the transfer of all the data stored in his EHR.
"In the contract, it doesn't give a specific definition for deconversion of the EHR; it just says [those words]," Dr. Peet said. "And dumb me assumes that means that the data that's in the EHR gets deconverted."
But weeks later, in dealing with his outgoing and incoming vendors, Dr. Peet says he learned for the first time there was a spreadsheet called a deconversion layout that listed the data to be deconverted. Missing from that list were key parts of patients' medical records, such as the majority of demographic data and all health maintenance data, including immunizations, colonoscopies, and other preventive care.
"And so I asked them about that, and they said, 'Oh, no, that's it. It is what it is. That's what we're doing,'" Dr. Peet recalled. "So we did a test extraction back in September, and I just had to accept their terms. … I had never done this before."
When Dr. Peet went ahead with the test extraction, he says the resulting data were corrupt and deficient. He says ICD-10 codes didn't attach to the patients' diagnoses in the system; only ICD-9 codes did. And according to him, that was hardly the only problem.
"There's just random data missing everywhere from the patients' charts. I mean, just everywhere. You name a category," Dr. Peet said. "Whether it's drug allergies, medical problems and their problem list, past surgeries, medications, it's like somebody took a shotgun [and shot] a piece of paper on a wall; there's just random holes everywhere."
The realization sent Dr. Peet scrambling for a solution. He thinks he's found one that will ultimately work, but he became one of many physicians who often don't get what they expected in terms of ease of transition, functionality, or interoperability when switching EHR systems.
"There's an overwhelming amount of hours and stuff needed for the transfer that you usually don't think is going to happen," says Odessa obstetrician-gynecologist Gary Ventolini, MD, a member of the Texas Medicine Editorial Board who recently made his own EHR system switch. "The vendors tell you, 'Oh, it is going to be very easy,' and things like that."
In making that transition, which is often a necessary one with the advancement of technology and the need to attest to meaningful use, physicians should proceed with caution.
An Arbitration Win
When an EHR vendor woos a physician practice, it's pretty common for that vendor not only to talk up the functionality of the EHR system but also to give physicians the impression that transferring their data will be a breeze.
Michael Kreager, a San Antonio business law attorney, says EHR companies are usually well-funded, with large sales forces that know "how to explain the system in a way the doctor wants to hear. But that doesn't actually translate into what happens. And when you read the contract … they all read the same, and they all have this in common: 'We don't warrant that this will work.'"
"You go buy a car from Ford or GM, and the vendors say, 'This car is going to work, and if it doesn't, we'll fix it in the next four years,'" Mr. Kreager said. "But if you buy software, here's what it says: 'We don't guarantee that it works, and if it doesn't work, the most we'll be responsible for is to pay your money back.' Literally. … So now if you've got a problem, you go back and you start complaining to the vendor, they pull out the contract that said, 'We didn't necessarily agree that it would work according to spec.' And sadly, this is not uncommon."
Indeed, TMA's 2016 Survey of Texas Physicians showed a little more than one-third of respondents had experienced damage to patient safety and care as a result of an EHR, with inaccurate or missing data topping the list of damaging events. (See "Damage to Care.")
"What's a physician practice going to do? They have very few recourses, and the practical disruption to their practices is enormous," Mr. Kreager said. "They're spending money to keep an old program running, they spent an inordinate amount of money to get a new program up and running, and they're in between, and so they're stuck in this land of limbo. And it's going to affect their efficiencies; it's going to affect the way they can address their patient needs and run their office."
Although the lack of recourse a practice often has for holding an EHR vendor accountable leaves physicians at a disadvantage, it's not impossible for physicians to make their case and receive compensation. The Houston-area Pediatric Clinic of La Porte (PCLP) proved that late last year, going all the way to New York to take on EHR value-added reseller Etransmedia Technology in arbitration.
Rhaman Uddin, MD, is PCLP's lone physician in what's currently a three-practitioner shop. According to PCLP's arbitration filing, Etransmedia contacted the practice in May 2013. Dr. Uddin's then-vendor stated in a letter it had engaged in negotiations with Etransmedia "to offer [PCLP] the ability to transition to one of the top products in the industry, Allscripts [P]rofessional EHR," according to the arbitration filing. Meanwhile, Etransmedia was locked in an ongoing dispute with Allscripts that involved the Professional system, according to arbitration documents.
Around 2010, Etransmedia purchased software licenses for a number of Allscripts software products, including Professional and another product known as MyWay, according to PCLP's arbitration filing. In October 2012, Allscripts announced a program to migrate all MyWay clients to Professional, a phasing-out of MyWay. Allscripts offered its MyWay customers an upgrade to Professional at no extra charge.
In an arbitration proceeding between Allscripts and Etransmedia that began in August 2013, Etransmedia claimed negligent misrepresentation, among other allegations. The reseller argued the Professional software could not replace MyWay because the company built MyWay for small physician practices, according to PCLP's arbitration filing. Etransmedia argued Professional was "appropriate for the 15–25 physician provider practice" and ill-suited for a small physician practice, according to PCLP's filing.
In late 2014, a North Carolina judge upheld an arbitration award of $9.7 million to Etransmedia that also found the Professional system wasn't a commercially reasonable substitute for MyWay. PCLP's filing noted the arbitration victory still left Etransmedia with a number of unsold licenses for the Professional software.
While the battle between vendor and reseller played out, according to PCLP's arbitration filing, the Etransmedia sales representative worked to sell the Professional package to PCLP. The practice's filing says Dr. Uddin made clear to the sales rep what he would require his EHR to do, including data conversion, lab interfacing, e-prescriptions, ICD-10 compliance, and "overall achievement of meaningful use."
"[The representative] even told Dr. Uddin repeatedly that the Professional was the best product for his clinic," PCLP wrote in its arbitration filing.
Dr. Uddin purchased the Professional system and went live with it in June 2014. He declined comment for this story, but in November he told Modern Healthcare that he realized after six months he wasn't getting the services he "requested and required."
"The [connection to] immunization records, which are very important for pediatrics, was never put in place," he said. "I was going back and forth between Allscripts and Etransmedia, and my staff was going back and forth. It was a big struggle from the very beginning."
In a brief it filed for PCLP's arbitration action against it, Etransmedia denied it had breached the contract between it and the practice. It said there was "no indication in the record that Etransmedia impeded implementation of any software or services in any manner" and that the agreement between the parties stated Etransmedia "does not represent that the system will meet [PCLP]'s requirements or that the operation of the software will be uninterrupted or error free." Etransmedia also denied PCLP's allegation of fraud in the inducement of the contract, saying it 'made no assurances in the Parties' Agreement with respect to Meaningful Use attestation, Quest Labs interfaces … or interfacing with the Texas Immunization registry.' Nonetheless, even if Etransmedia had done so, which it did not, any representations about these add-ons would have been promissory in nature and, therefore, insufficient to support a claim of fraudulent misrepresentation."
But last October, in Albany County, New York, an arbitrator found in favor of PCLP on the clinic's allegation of fraud in the inducement. The arbitrator said Etransmedia didn't advise PCLP of its "deteriorating relationship" with Allscripts, a relationship that would later "seriously impact the delivery and implementation" of the systems it sold PCLP. The decision awarded PCLP more than $425,000 in damages and legal fees and ordered Etransmedia to properly support Dr. Uddin's EHR needs for one year or pay nearly $183,000 in additional damages. The award totaled more than $635,000, including damages and court-cost reimbursement.
Javairia Syed, a Dallas attorney who serves as counsel for PCLP, told Texas Medicine Dr. Uddin had no way of avoiding this particular situation because no one knew Etransmedia was engaging in battle with its supplier. She says Allscripts' Professional product "is actually a very good product; it's actually one of the top-selling EHRs." The only way Dr. Uddin or anyone else would have known about the issues between Allscripts and Etransmedia, she says, would have been to find the lawsuit on the North Carolina business court docket.
"No lawyer would've known to do that. No doctor would've known to do that before purchasing an EHR," Ms. Syed said.
At press time, an Etransmedia petition to the New York Supreme Court to vacate the award was pending. Dana Salazar, an attorney for Etransmedia, said in February she couldn't comment on the allegations in the arbitration case "because it is in ongoing litigation." Meanwhile, Etransmedia and Allscripts were in litigation in North Carolina. In January, Formativ Health, a New York-based management services organization formed just days earlier, announced it had purchased Etransmedia. Allscripts did not respond to a request for comment.
An Inconvenient Workaround
Meanwhile, back in Fredericksburg, following the test extraction of his records, Dr. Peet says his complaints to his longtime vendor about the deconversion process didn't get him anywhere. That left him in a quandary. If he went ahead with the switch to the new system, which he calculated would save him about $12,000 a year, his patient records would display yawning gaps. If he stuck with his old system, he'd be staying with what he believes is an inferior product.
"And I'm thinking to myself, Well, I'm conflicted because I'm the trustee of every patient's medical record that I have. … Am I just going to throw that away willfully because they won't give it to me?" he said.
At one point, Dr. Peet says he tried to remain with the same vendor, thus keeping all his EHR data intact, if the vendor would agree to renegotiate his fees. But "they basically wrangled back and forth with me about how they weren't going to give me a break on price. And this took them six weeks of just not getting back to me, where I basically just said all right, the deconversion's back on," and he chose to continue with the switch.
Dr. Peet says he has issues with the vendor he'll be transitioning to as well, including that it was unable to offer him a case manager who had experience with deconverting data specifically from his old vendor. But in February, he said he was planning to go ahead with the switch and deal with the gaps in the new patient records himself. Before the data extraction, Dr. Peet intended to go into his EHR system, export every patient's chart into a PDF, "which is going to take us hours," and put them on a separate drive. That way, he'll have every patient's complete record backed up before the deconversion takes a hatchet to many sections of the records. Over time, he said, he would use that backup to fill in the gaps in the system.
Dr. Ventolini, regional dean at Texas Tech University Health Sciences Center (TTUHSC), says the university recently encountered a situation when it decided to break from the EHR system it shared with Medical Center Health System of Odessa and get on its own EHR system with the same vendor. He says the vendor claimed the rights to the electronic health information and charged "a substantial amount" to transfer the data. Dr. Ventolini says that charge wasn't in the contract with the vendor. However, the hospital, which handled the current contract, was able to cover that cost. Still, the experience highlighted for Dr. Ventolini the problem awaiting smaller practices that don't have thousands of dollars laying around for extra fees.
What You Can Do
PCLP having to take its case to New York is what Mr. Kreager describes as another unfortunate by-product of many physician contracts with EHR vendors: an agreement to decide any arbitration dispute far, far away from where the physician is using the system. He says vendors know a practice's office manager is the person most likely to go over the contract before agreeing to it.
He advises practices to hire a consultant who understands EHRs and their vendors, rather than an attorney, before entering an agreement. He recommends practices work with "somebody who's had actual experience either working for these outfits or a large part of their consulting practice is dealing with physicians who implement and use this software so that they know where the line of salesmanship stops and the area of delivery performance begins."
Using a consultant, he says the practice also can be proactive by communicating with other practices to see whether the software under consideration does what it's intended to do. Mr. Kreager says while large hospital systems may have some pull in negotiating contract changes, small practices don't.
"You go to Hertz, and you want to rent a car, and you tell them, 'Well, I really don't like this provision,' and they're going to tell you to go pound sand and go somewhere else. And the software contracts are the same," he said. "And they'll basically say the same thing: 'Hey, we can't make changes because we do thousands of these, and they all have to be the same.'"
After his experience, Dr. Peet advises physicians to get the list of data that will be transferred included in the contract, and he says they should try to get control of their data and get a quote to move the data in house and create a backup.
"Then you can give the new software company one of your backup tapes, and they can actually do a good job because they want to do a good job on getting the data out of it," he said.
Once a dispute arises, Mr. Kreager says the first step is for the practice to take its problem to someone in "a problem-solving capacity" with the vendor. If that doesn't work, he says, find a trial lawyer, rather than a contracts lawyer, and see whether that attorney can make a claim under the Texas Deceptive Trade Practices Act.
Joey Berlin can be reached by phone at (800) 880-1300, ext. 1393, or (512) 370-1393; by fax at (512) 370-1629; or by email.
Modified March 31, 2017.
Legal articles in Texas Medicine are intended to help physicians understand the law by providing legal information on selected topics. These articles are published with the understanding that TMA is not engaged in providing legal advice. When dealing with specific legal matters, readers should seek assistance from their attorneys.
Words of Caution
TMA's paper "EHR Buyer Beware: Issues to Consider When Contracting with EHR Vendors" highlights eight important contract terms medical practices should consider before signing on with an electronic health record (EHR) vendor. The tips include what to ask for regarding transferring data if a practice wants to switch EHR vendors, along with pointers on contract renewal provisions, regulatory language, and more. Visit TMA's electronic health records page to download a PDF.
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